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Sex shop loses appeal, vows to keep fighting

'The board should not use permitting issues to restrict freedom of expression': lawyer

Vancouver’s board of variance rejected an appeal from the operator of multiple sex stores to reconsider his development permit application for his Kingsway store on Oct 14.

Tony Perry opened the Fantasy Factory, one of seven in the Lower Mainland, last fall. It advertises adult videos and magazines, lingerie, performance enhancers and sex toys. Perry says the store conforms to zoning guidelines and doesn’t display anything explicit on the street.

The store also complies with the area’s commercial business requirements, Perry’s lawyer told the board.

And before Fantasy Factory, the location was already home to a video store that rented porn, Alison Latimer added.

“The board should not use permitting issues to restrict freedom of expression,” she said.

“This is a land use issue, not a moral issue,” countered John Greer, who runs the city’s development services processing centre. Greer says the store is too close to Robson Park, which violates zoning requirements.

“What if you’re not allowed to operate?” board chair Tony Tang asked Perry.

“I will have to fight you all the way to the Supreme Court of Canada. I have no choice,” said Perry, who has a five-year lease on the corner store in a mini-mall at Fraser St and Kingsway.

Latimer told the board that in denying Perry’s permit application, the city is giving undue weight to neighbourhood objections.

She said listening to a small group who object to a store would allow a given community to exert power over the general community.

“In that case, the freedom of expression is a very hollow one,” she said.

The board heard the city sent out 795 letters to area residents to canvass opinions about Perry’s store.

Of 101 responses, two supported Perry. A petition with 63 signatures opposing the store was also received. The board received a further 32 letters opposing the store.

“The fact so many people may find one form of expression offensive does not mean it is prohibited,” Latimer responded.

Among the responses, she said, were ones saying the store would attract people not wanted in the neighbourhood, people who would not share their values. Respondents feared prostitution in the area and others feared for their children.

Other letters mentioned immoral garbage and perverts.

“Businesses cannot be prohibited in any way by their customer base,” Latimer said. “If that were the case, criminal law would have no base to operate.”

“Many corner stores sell porn,” Latimer said. “Stores like London Drugs sell sex toys and children are allowed in there.”

“Mr Perry is not involved in any criminal activity nor does he permit any criminal activity in his store.”

Further, she added, “contrary to the belief of some people, adult prostitution is not a criminal offence. Mr Perry is not involved in any way in sex work.”

In August, Dickens Community Group coordinator Peter Wohlwend told Xtra the store is in everyone’s face. He said people might not be upset if the store’s advertising were more discreet.

When Tang asked if there was anyone in the hearing room from the neighbourhood, no one responded.

Perry told the board he was willing to be flexible with any board conditions on advertising and window displays placed on him. However, he stressed, community standards are a national issue governed by Parliament. He asked the board to respect that.

After the meeting, he said the store would remain open.